An assortment of all things interesting (and possibly useless) in the legal profession

Thursday, March 5, 2009

Proposition 8's Legality to be Tested

As the New York Times reports, the California Supreme Court will hear arguments today concerning Proposition 8's legality. Passed during the November 4, 2008 general election, Proposition 8 eliminated--perhaps via constitutional amendment (more on this below)--the right to same-sex marriage that the California Supreme Court, in In re Marriage Cases, 183 P.3d 384 (Cal. 2008), had previously held state constitutional law to require.

The question the Court will consider is whether Proposition 8 amended the state constitution or revised it. If Proposition 8 revised, rather than amended, California's constitution, there are more stringent requirements for implementation. Indeed, as the New York Times notes:

Under California law, an amendment is a matter that the state’s longstanding initiative process deals with routinely. A revision, however, entails a fundamental change to the Constitution, and requires approval of either two-thirds of each house in the Legislature or a constitutional convention. That could be much harder to achieve than passage in a referendum.

Although the legal question presented of whether Proposition 8 was an amendment or revision is mundane, the case brings to the fore a number of interesting considerations. I personally find the implicit "role of the Court" question most fascinating given that Proposition 8 proponents have repeatedly pointed to the "will of the people" in defending the measure--a view which suggests the Court would somehow be encroaching on the democratic process by invaliding the provision. If anything, however, these views are an argument for judicial oversight and review; who, after all, is better equipped to vindicate rights (constitutional or otherwise) than the Courts? In a different, albeit related, context the Supreme Court recognized as much when it struck down a voter-enacted amendment to Colorado's constitution in Romer v. Evans, 517 U.S. 620 (1996).

49 comments:

Is the prop 8 decision is likely to get appealed to the supreme court? I am not a lawyer, but I can't help but think that this case case provides the perfect storm so to speak. You got citizens adamantly against it, and liberals in support of it. It has to lead to a shakedown

This decision itself couldn't be appealed to the Supreme Court unless the decision involved federal law. California's Supreme Court gets final say on state law issues like this one.

More broadly speaking, however, I think you're correct when you call it the "perfect storm." Virtually every legal change in this area of law has prompted further development (Proposition 8 is a good example, as it was a response to the California court's earlier decision).

Assuming the California Supreme Court struck Proposition 8 down, it's conceivable that the same result Proposition 8 deals with could be realized through the more stringent legislature vote or constitutional convention procedures...were this to happen, there could be federal constitutional challenges. And, of course, federal challenges of this kind can be (and I'm guessing have already been) filed with respect to Proposition 8 as it stands today.

Your statements almost don't warrant a response, 2:16. To be clear, there's a logical difference between extending rights for men to marry men (and women to marry women) than letting "animals" marry people (or themselves).

You can kinda tell their going to overturn this. what's next? people marrying animals?

Your argument is ignorant. These are relationships between two consenting people. The key word is consenting. Look it up if you need help understanding the definition. Also, please study up on proper usage of there/their/they're.

What 2:16 said was not exactly eloquent, but the bottom line is pretty accurate and anyone who tells you otherwise is not being honest about it.

Craig said "Broadening the legal definition of marriage somewhat does not mean we can't still impose limitations."

Not really. Sure, you can "impose limitations" but 2:16's point is not about whether you could do that so much as its showing it could be a slippery slope. It's harder to "impose limitations" when you continuously cut away at cherished, historical rules.

I think that's why Scalia had such a problem with to the majority's position in Lawrence v. Texss. He realized that the Court was not actually advocating gay marriage by recognizing privacy interest in gay relations, but could see the writing on the wall ("Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned").

Since Prop 8 is about "protecting the traditional family", which produce children ... I have a proposal to provide identical treatment to all individuals who wish to marry, so that there are no "equal protection" violations:

Let's prohibit marriage to all infertile couples and all couples who refuse to reproduce, and let's retroactively invalidate marriage for people who have not reproduced by some arbitrary (but reasonable) time after their marriage (but the deadline will be absolute, with no exceptions or excuses allowed), and make them re-pay to the state, the value of all the economic benefits they've received while party to a marriage for which they either didn't qualify in the first place, or did not qualify within a reasonable time after the marriage.

In order to protect society from couples whose unions contribute nothing to society, we need to weed out those unions that make no contribution but nevertheless suck up economic benefits that are deserved exclusively by couples who do contribute by producing children. We therefore need an arbitrary point after marriage by which the couple must have reproduced. Unfortunately, to be fair to all, we'd have to make the deadline apply equally to people whose pregnancies resulted in still-births or produced children who did not survive ... as they are undeserving of society's support of any kind, by virtue of being unions that are incapable of producing children.

So as not to create the need for another huge government bureaucracy, I propose that as part of the process for applying for a civil marriage license, the couple be required:

(1) to present certificates (of not more than a certain age) from doctors attesting to their fertility and lack of substance abuse, absence of psychological propensity to addictive behaviors or irrational thoughts, (along with the certificate of lack of lack of communicable venereal diseases, which are already required in most states); and

(2) to sign a contract promising to have produced children within a specific (and reasonable) period of time, and agreeing that if no offspring have been produced by that time, (i) the marriage is retroactively invalid and (ii) the individuals must repay, and are obligated to, the state all economic benefits received by the individuals "qua" married couple during the invalid marriage - this could be enforced as part of the obligation to file tax returns - the individuals could be required to submit certificates of birth and continued life, etc., with their tax returns, and the obligations to repay the benefits (which could be actuarially determined, using a standard table) would become a charge against future income .

There certainly should be no objection to the state being involved in "policing" the reproductive abilities and success of people who want to be married, because, as the proponents of Prop 8 have argued, marriage is not a right that exists independently of the state. My proposed statutory scheme would make sure that this works in a fair and even-handed manner as to all individuals, and does not discriminate against same-gender couples only.

While slippery slopes do exists, societies don't slip down them by accident. Where we "place our fences" is something we as a society take very seriously -- i.e., in limiting the death penalty to murder, or in having a strict legal drinking age, or having a movement for the legalization of marijuana but not of heroin.

We're grownups, and I think as a society we can decide that people should have the right to marry without regard to gender but shouldn't be allowed to marry a dog. As others have said, this line of argument is incredibly insulting and not worthy of even being advanced by so-called "thinking people." It's logically incoherent and bigoted, and I wonder if you know any homosexuals personally.

But from a legal perspective, why do you believe that the government (any government) has the right to define marriage based on gender? Marriage is a deeply personal decision, and while government may have the authority to restrict a marriage that is based on exploitation, such as a marriage to a minor, in the absence of such exploitation, what right does government have to ban individuals from a basic human right.

Some have argued that government-recognized marriage confers certain benefits, and therefore, government can choose whom it benefits. But that can't be true -- we have a Fourteenth Amendment in this country.

Scalia was right that Lawrence leads to the inevitable conclusion that there is no legal basis for banning same-sex marriage. But that's not a slippery slope -- that's just what the Constitution requires.

The only counterargument is that same-sex marriage is in some way bad or exploitative. While many people believe this, there is no evidence that it is true. Instead, same-sex marriage increases the number of potential family units in this country, which the family-rights lobby should be happy about.

"The only counterargument is that same-sex marriage is in some way bad or exploitative . . ." I vote this reasoning nearly as ignorant as the earlier comment.

I find it interesting that there are so many law students who are pro-gay marriage that cannot identify the legal arguments against gay marriage. Instead of making ignorant comments, try to use some legal reasoning to persuade me to believe why a court should strike down a gay marriage ban.

The problem with the "dog" and the "inanimate object" arguments, is that neither the beast nor the thing can consent or withhold its consent; also, both animals and things are classified as property (though, so were women at one time). Perhaps the right to consent or not could be given to the first wife (or husband!) in the polygamy context, so that the arrangement was voluntary as to all or could not exist.

Anon wrote: "... try to use some legal reasoning to persuade me to believe why a court should strike down a gay marriage ban."

1. the right to marry is a "fundamental" incident to personal liberty;

2. the ban involves the use of a suspect classification of citizens;

3. the foundation for the ban is essentially religious, in that it is derived from religious texts which purport to establish the "immorality" of same-gender sexual relationships, and the ban impermissibly seeks to impose the religious views of some onto all in violation of the "free exercise" clause;

4. no "compelling government interest" justifies the ban;

5. the ban is not narrowly tailored, because it is over-inclusive in that it includes in its scope persons whose conduct is consistent with whatever compelling governmental interests may exist in support of restrictions on marriage on other than religious grounds;

5. the ban is not narrowly tailored, because it is under-inclusive in that it excludes from its scope persons whose conduct is inconsistent with and antithetical to whatever compelling governmental interests may exist in support of restrictions on marriage on other than religious grounds;

6. it is not the least restrictive means of accomplishing whatever compelling governmental interests may exist in support of restrictions on marriage on other than religious grounds.

#3: More of an establishment/excessive entanglement argument, if any but I'd tend to think the religious angle is weak.

#2: I don't believe homosexuals are a suspect classification under equal protection. If you're referring to In re Marriage Cases (i.e. state law rather than federal law) I am admittedly unsure of how things stand; please enlighten me.

This is a very interested thread. I really enjoy that there are commenters on each side- that has led to a great discussion.

I have a couple of things to add.

First, some appear to be arguing on a purely moral ground. I think it is necessary to point out that although a decision may be morally reprehensible, it may be legally correct. Just because a court holds a law constitutional does not mean that the law is morally correct. A court would merely be leaving the decision to the political powers, and it would then be in the people's hands to act "morally."

Secondly, I think Mark In Irvine makes some great legal arguments as to why such a ban on gay marriage is unconstitutional. But- to be fair to the other side- (and I'm not taking one side or the other) there are also some convincing arguments that such a ban is constitutional. - This isn't a suspect classification. At most, it's a quasi-suspect classification under federal law and would, thus, be subjected to intermediate scrutiny. - You frame the right at issue rather broadly, and while framed that particular way is is a fundamental right, I question whether the Court would frame it that narrowly. - Is there not a compelling government interest? Justice Scalia would surely argue that morality is one. Also, procreation may be another.

The California Supreme Court in "In re: Marriage Cases" has already stated that gender discrimination/sexual preference/whatever they called it IS a suspect classification.

The California Supreme Court in "In re: Marriage Cases" has already stated that individual's right with respect to bonding / personal relationship etc is "fundamental".

If you start to flesh out the "compelling state interest" I think it necessarily focuses on children, and when you examine what the interest is and how to further and protect it, the Prop 8 ban over-includes people and leaves out some against whom protection arguably is appropriate.

Gay people can procreate: there is artificial as well as natural insemination; and some adults personally affected by Prop 8's ban already have children?

Straight people who either choose not to reproduce or are incapable of reproduction are not prevented from marrying other straight people.

In the Prop 8 cases/controversy, we're talking about California law under the California constitution, not federal law. Federal law may come up when we get to the discussion of application of the federal constitutional "full faith and credit" clause and the "Defense of Marriage Act", a challenge to which apparently was filed this week.

So much has been said here that it's almost hard to formulate a response.

Let me start by echoing what Josh (Borden) said, and thanking all of you for taking the time to share your thoughts. I also agree with him that it is important to, to the extent we are discussing this issue, separate "legal" arguments from "moral" arguments.

My intention, of course, was not to spark any arguments at all. Rather, I wanted to share what was happening with our readers. That said, I'm glad a diversity of different views have manifested themselves in response to several commenters who have made slippery slope arguments because it contributes to the general conversation.

In that vein, I'll briefly note the following:

1) I think Mark In Irvine puts forth a strong argument in favor of same-sex marriage--be it on a federal, or state scale. It is important to remember, however, that in the present context the question is whether this was an "amendment" or a "revision." It's the latter if it modified California's articulation of equal protection from In re Marriage Cases. In short, this is a narrow inquiry; we're not addressing the constitutional propriety of this under California equal protection as a general matter--we're addressing it with the retrospective insight that California may have amended their constitution. If it was, in fact, an amendment then the equal protection argument in favor of same-sex marriage--insofar as it relates to California law--holds no water.

The federal equal protection argument is obviously another story, and my personal view is roughly aligned with what Josh (at 3:49) said regarding Lawrence. Whether we base it on substantive due process, equal protection or something else, I think ultimately the Court will hold that there is a right to same-sex marriage because precedent seems to command it.

2) I find the slippery slope arguments to be rather silly, although the polygamist issue gives me greater pause than the other slippery slopes along those lines.

3) Although Mark in Irvine's point at 3:43 is kind of besides the point insofar as it relates to the disposition of Proposition 8 *at this point*, I think it is something proponents should think long and hard about when articulating the MORAL (and, perhaps, legal) justifications for the provision.

The Attorney General argued that Prop 8 should be invalidated because it abrogates fundamental interests protected by Article I of the California Constitution without a compelling interest. See http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/s168047-answer-response-petition.pdf at pp 75 et seq.

Well at least the Supreme Court doesn't seem to think this unconstitutional ban was retroactive......

"Justice Carol Corrigan asked whether people don't have a right to expect to be able to rely on the law at the time when they were married? That's when Starr replied with the no-fault divorce argument, since obviously many couples who expected to have a hard time divorcing suddenly saw a change in rules.

But both Justice Joyce Kennard and Chief Justice Ronald George questioned whether voters saw Proposition 8 as retroactive. George asked why a retroactivity clause wasn't built into the initiative, if that was the intention."

Personally, I find the concept that marriage of any variety be it 'traditional' or 'gay' is a governmental interest to be reprehensible. What business does the gov't, state or federal have in creating wholly arbitrary distinctions? None, if you ask me. I think the time may be coming where people will stop embracing government as the answer and start to realize that it is the root of nearly all the problems we as a People face today.

::Climbing off the soap box::

As a practical matter, however, I am interested in seeing how the Cal. S. Ct. uses a 'procrustean' (sp?) method to come to the same conclusion it did last year. Anyone who thinks that California is NOT getting gay marriage back, regardless of their political/moral biases, is just myopic.

The link appears to be to the product of an effort to get it all down as it happened, but not a "transcript" as such. I'll keep looking.

In the meantime, however, according to the text provided by Law Dork, 2.0, Kennard said: "Prop 8 ... did not eliminate the suspect classification holding [in In re Marriage Cases]." This appears to be a significant statement, especially if all the justices agree.

Obviously not a central part of the debate, but I really think it carries some weight and I find it very interesting. Proponents of polygamy are obviously limited in number and even more limited in political clout. It would be interesting to hear if proponents of gay marriage would support proponents of polygamy or if they would take a stand against it, much like the stand that is being taken against them.

In response to 4:21

-Likelihood of polygamist marriages to be entered into against will, i.e. non-consenting

--I think this argument is rather weak--(1) in fact, if anything this might reduce the problems of the "spiritual" marriage. In applying for a marriage license all parties would have to give consent and state that they are entering into this of their own free will and choice. Additionally, verification of age would also take place. (2) Secondly, if someone wants to abuse the system, they will do what they are currently doing and do a "spiritual" marriage.

-Difficulty regarding property disputes, divorces and the like when there are more than two spouses in volved

--simple piece of legislation would fix this. Again, if you are arguing from the moral standpoint that in terms of marriage, two (or in this case more than two) law abiding citizens have the right to get married regardless if it is two men, two women or a man and a woman--then it would be hard to argue that "property difficulties" should stand in the way of someone's "right."

-The fact that a right to polygamist sexual interaction has not been established, at least explicitly, while a right to homosexual relations has.

--First, sex with multiple partners is not illegal. I don't know if there are still adultery laws on the books, but if they are they are not enforced. I think we are well past the days of the government telling you who you can and cannot have sexual relations with (obviously if it is with consenting adults). I would actually laugh if that held something like this up. Is swinging illegal?

I tend to agree with Master Shake, the government has no business in marriage. But it works the other way too...why do we let clergy officiate in a marriage contract that controls certain civil rights? This is a major area where there is no separation of church and state and that is why this is such a big issue.

At the risk of sounding like a flaming liberal, I'm going to suggest that French have at least one thing right. To get married in France, you must go to city hall in your town of residence and be married in a civil ceremony, usually by the deputy mayor. Following that ceremony, the entire wedding party then crosses the street to the church and get married by the priest. The state does not recognize the religious rite and the church does not recognize the civil ceremony.

Would that be so tough here? Require all couples to have civil unions by government officials in order to benefit from the full civil rights associated with marriage. Then those couples can be free to celebrate that union with whichever social or religious group accepts them. Government out of the church and the church out of the government.

Second, same-sex marriage doesn't go far enough. Canada legalized same-sex marriage in 2005. Now there is a case before the courts in Manitoba where two octogenarian spinster sisters who have lived together their entire lives are claiming the law unfairly discriminates against them being able to get married civilly. Their relationship is not incestuous in any way, just co-dependent. They have built their lives together. Why shouldn't they be able to designate each other as their next of kin?

Civil union laws should be akin to a buddy system - you can select one other adult person, no qualifications as to romantic feelings or biological identity, to be your life partner. You just have to be committed to that person. Let social and religious groups make their own rules.

"I think this argument is rather weak--(1) in fact, if anything this might reduce the problems of the "spiritual" marriage. In applying for a marriage license all parties would have to give consent and state that they are entering into this of their own free will and choice. Additionally, verification of age would also take place. (2) Secondly, if someone wants to abuse the system, they will do what they are currently doing and do a "spiritual" marriage."

--after thinking about it I agree with you, but I think my first point would be the objection you're most likely to get because non-consensual polygamist marriages on compounds are notorious in our society (think Big Love). Obviously, these marriages would not be recognized by the state so I guess the point's moot.

"simple piece of legislation would fix this. Again, if you are arguing from the moral standpoint that in terms of marriage, two (or in this case more than two) law abiding citizens have the right to get married regardless if it is two men, two women or a man and a woman--then it would be hard to argue that "property difficulties" should stand in the way of someone's "right."

--also a good point after thinking about it. I don't really have a response.

"First, sex with multiple partners is not illegal. I don't know if there are still adultery laws on the books, but if they are they are not enforced. I think we are well past the days of the government telling you who you can and cannot have sexual relations with (obviously if it is with consenting adults). I would actually laugh if that held something like this up. Is swinging illegal?"

--not enforced, sure. But it is illegal, and can be enforced at any time. If i remember correctly, the law enforced in Lawrence v. Texas had basically never been used recently either. The same in Griswold v. Connecticut. Without a supreme court decision extending to cover this, there could be problems.

overall I think you raise a good point. I support same-sex marriage, and would not be 100% against my belief being extended to polygamy but I doubt everyone feels the same was especially since polygamists are very against same-sex marirage.

9:43: Can you elaborate on this Canadian case? I may be missing something, but I understood there to be a difference between "marriage" and "civil unions." I don't see why your couple would not, or should not, be able to qualify for civil unions but I do think it makes sense to ban them from marriage independent of religious reasons because marriage carries with it more than property-distribution, visitation rights, etc. It is a state-endorsement of a contractual union which cannot be breached and in some cases (as 10.22 said) could be punished during breaches.

I agree totally about the entanglement between church and state in marriages, but we're in a very small minority on this.

Would you people who want to ban gay marriage also support a ban on divorce? If you're all about protecting storied institutions and have religion so far crammed up your ass that you can't see that you are an ignorant asshole, at LEAST be consistent. DIVORCE, aka 50% of marriages that end up in divorce, is FAR more destructive of the institution of marriage than two men in love who want to formalize it. fools.... should have let you hicks secede in the 1800s

9:43 here. Apologies for claiming the reference as Canada. It was UK. Same queen, different continent.

http://news.bbc.co.uk/1/hi/uk/7373302.stm

The argument is still valid, though. The government should get out of marriage and require civil unions for all, which would be recognized as holding the same civil rights as marriage for tax, housing, and employment purposes, etc. This partnership should be open to any adult couple, regardless of gender, blood relationship, or anything else.

As for the difference between "civil union" and "marriage", it depends on the way civil unions are set up in the particular jurisdiction. In some places the distinction is semantic to please conservatives. In other jurisdictions there are substantive differences. E.g. Vermont grants same-sex civil unions that are no different than marriages under state law. However federal law does not recognize those civil unions as equivalent to marriage. In Canada, marriage is marriage, same-sex or opposite-sex. It could just as easily be called "civil union" or "fish bowl" (the latter might be confusing), but substantive rights are no different.

9:56--Wow, I can't believe it, you are right I am ignorant. And your line of reasoning and your angry tone, really have influenced my thinking. It is idiots like you that made the majority of California vote for Prop. 8.

This is a very touchy subject where there is a strong difference of opinion from one person to the next. You are entitled to your views, just as those on the other side of the debate are entitled to theirs. Nothing good will come of resorting to ad hominems, however, and your message tows the line of violating our Blog policy. Given the fact this is uncharted territory for us, we will not remove the post but we respectfully ask that, in the future, you articulate your (well-taken) views via reasoned (rather than bombastic) argumentation.

I encourage you to expand on your point regarding the incongruity between perception on divorce and perception on same-sex marriage; it's an interesting point.